All Things Considered . . .

     Appellant Akin’s opening brief stated:  “All things considered . . . it was assumed that the May 30th arbitration had been cancelled.”  The lesson of our next case is that one who fails to show up for a scheduled arbitration hearing had better dot i’s and cross t’s . . . or else. Akin v. Prado, No. F066482 (5th Dist. June 9, 2014) (unpublished).  

     Akin wanted to continue an arbitration hearing to complete discovery.  However, Prado refused to do so.  The arbitrator held the hearing, and entered an award in favor of Prado.  The trial court confirmed the award, and denied Akin’s petition to vacate.  Akin appealed.

     Appellant’s fate was sealed by the “substantial evidence” standard of review. “Pursuant to the applicable standard of review, we accept the version of events as found by the trial court, not the version presented by Akin.” 

     Interestingly, Cal. Code of Civ. Proc., section 1286.2(a)(5) specifically provides that an award shall be vacated if the court determines “rights of a party were substantially prejudiced by the refusal of the arbitrators to postpone a hearing upon sufficient cause being shown therefor . . .”  (italics in the opinion). 

    PRACTICE TIP:  The remedy for continuance is to make a proper noticed motion, rather than to assume that the hearing has been cancelled and fail to show.

    COMMENT:  The Court of Appeal’s application of a “de novo standard” to review the trial court’s order (not the arbitration award), coupled with a  “substantial evidence” standard to the extent that the trial court’s ruling rests on disputed factual issues, may at first seem confusing.  The Court of Appeal relies on Lindenstadt v. Staff Builders, Inc., 55 Cal.App.4th 882 (1997) (Masterson, J.), a case holding that a narrow exception to the rule that a court may not set aside an arbitration award even if the arbitrator made an error in law or fact, is the situation where the entire legality of a contract is at issue: public policy requires de novo review of the trial court’s order.  However, the facts of Lindenstadt seem rather afield from those in Akin.  

     The following comment by the Court of Appeal helps us to make sense of how it applied the standard of review:  “The arguments presented by Akin on appeal are based on assertions of fact that are contrary to the findings of the trial court . . . “  In other words, the Court of Appeal is telling us that the trial court had to make findings to reach its conclusion that the rights of a party were not substantially prejudiced by the refusal of arbitrators to postpone a hearing upon sufficient cause – and those findings were supported by substantial evidence.